Appeals from the Superior Court of the District of Columbia (F-2830-96). (Hon. Mary Ellen Abrecht, Motions Judge). (Hon. Judith Bartnoff, Trial Judge).
Before Terry, Schwelb, and Ruiz, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
Appellant was charged with first-degree premeditated murder while armed, first-degree felony murder while armed, conspiracy to commit robbery, attempted robbery, two counts of assault with a dangerous weapon (ADW), and two firearms offenses. Before trial, the government dismissed the conspiracy charge, and at the close of the government's case, the trial court granted appellant's motion for judgment of acquittal on the charges of armed robbery and felony murder. The jury found appellant guilty of ADW and second-degree murder while armed, as a lesser included offense of the remaining first-degree murder charge, but acquitted him on all the remaining counts of the indictment. The court later sentenced appellant to consecutive prison terms of twenty years to life for murder and forty months to ten years for ADW.
Shortly after filing a notice of appeal from his conviction, appellant also filed a pro se motion to vacate his sentence pursuant to D.C. Code 23-110 (2001), asserting that his trial counsel had rendered ineffective assistance. That motion was denied without a hearing, and appellant noted an appeal from that denial, which we consolidated with the previous appeal.
Appellant argues that the trial court (1) abused its discretion in disqualifying his retained defense counsel of choice because of counsel's previous and concurrent representation of a potential government witness; (2) abused its discretion in refusing to reinstate defense counsel once it was learned that the potential witness was not in fact on the government's list of witnesses; (3) erred in denying his motion to suppress an ammunition clip found in the pocket of his jacket; and (4) erred in denying his § 23-110 motion. We reject the first, third, and fourth arguments, but find merit in the second. Specifically, we find no error in the trial court's denial of the motion to suppress, no error in the denial of the § 23-110 motion, and no abuse of discretion in the court's original decision to disqualify defense counsel. However, we hold that the court abused its discretion a year later by failing to conduct a sufficient inquiry before ruling that appellant's counsel of choice would not be reinstated. For that reason we remand for further proceedings, as set forth in part III of this opinion.
On April 2, 1996, Tory Brown, Philip Baldwin, and a man identified only as "Tim" were conversing in the 4600 block of A Street, S.E., when appellant, wearing a black three-quarter-length jacket and a black hat, approached them and asked if they knew a person named "Kebo." The three men said they did not, and appellant walked away. A few minutes later, however, appellant returned and repeated his question; the men again replied in the negative. Shortly after this encounter, police officers told the three men to "take a walk" because of complaints about drug sales in the area. The men walked up A Street to the corner of 47th Street, and appellant approached them once again, this time accompanied by another man, Darrell Curry.*fn1 Both appellant and Curry pulled out handguns and ordered the three men to lie down. Mr. Baldwin complied, but Tory Brown and Tim ran down the hill, hearing gunshots as they ran. Within less than a minute, Brown found one of the officers who had told them to leave the area and asked him to "go up the hill" because he thought Baldwin had been shot, as in fact he had.
Kevin Hallman was repairing his car in front of his home in the 4900 block of Astor Place when he heard five or six gunshots coming from the vicinity of 47th Street. Seconds later, he saw appellant, wearing a long black coat, and another man (Curry), wearing a multi-colored athletic jacket, running up Astor Place toward him and away from the direction of the shots. Mr. Hallman approached the police officers now standing over Mr. Baldwin's body, one of whom was Officer Nabinett. He and Officer Nabinett drove back up Astor Place, and within about*fn2 seven minutes Hallman pointed out appellant and Curry as they walked through a parking lot in the 5000 block of Astor Place. Officer Nabinett radioed a description of appellant and Curry, stating that one of them was wearing a black jacket and blue jeans and that the other was wearing a blue and gold Notre Dame jacket.*fn3
Menawhile, Officer Michael Campbell of the Metropolitan Police heard Officer Nabinett broadcast a lookout about the shooting that had just occurred at 47th and A Streets, S.E. As Officer Campbell turned onto Astor Place, he spotted the man wearing the described blue and gold jacket running behind 5054 Astor Place. Running with him was a man later identified as appellant. Officer Campbell left his scout car and went around to the back of 5054 Astor Place to intercept them. As the two men came around the building, Officer Campbell pointed his service revolver at them and ordered them to "freeze," put their hands in the air, and lie on the ground.
After backup officers arrived, both appellant and Curry were handcuffed and patted down for weapons. This frisk occurred within five minutes of Officer Nabinett's lookout. Officer Campbell testified that the two men were not under arrest at this point, but were merely being held while the police continued their investigation. As appellant was about to be transported to a showup, Officer Campbell started to pat him down once again. He felt an object in appellant's right jacket pocket and removed it, discovering as he did so that it was a loaded ammunition clip for an automatic pistol. Appellant said, "Where did you get that from?" At trial another police officer testified that he found a loaded nine-millimeter Luger semi-automatic pistol lying on some leaves behind a house in the 5000 block of A Street. It was also established that the ammunition clip recovered from appellant's pocket was operable in that pistol.
II. THE DISQUALIFICATION OF DEFENSE COUNSEL
Ten days after he was indicted, appellant retained an attorney, Douglas Wood, to represent him. In October 1996, approximately one year before trial, the government moved to disqualify Mr. Wood because of his "successive representation" of a potential government witness, David Henderson, who supposedly would testify that appellant had made a jailhouse confession of the murder. Mr. Wood had previously represented Mr. Henderson in an unrelated*fn4 criminal matter, and at the time the government filed its motion, Mr. Wood was representing him in a case in the United States District Court that was scheduled for sentencing, as well as an upcoming trial in the Superior Court.
At the hearing on the motion to disqualify, the government asserted that Mr. Wood's representation of Mr. Henderson posed two conflicts. First, it argued that Mr. Wood's "ethical obligations to Pinkney will clearly hinder his ability to negotiate for the witness any cooperation agreement with the United States . . . ."
Second, it maintained that Mr. Wood's "ethical obligations to the witness will clearly hinder his cross-examination of the witness" at trial. Mr. Wood responded by first informing the court that he had already moved to withdraw from his current representation of Mr. Henderson. He then proposed that the court appoint counsel for Henderson and hold an in camera hearing (1) to determine what Mr. Henderson's testimony would be, (2) to assess his credibility, (3) to determine whether Mr. Wood could effectively cross-examine him without addressing Mr. Wood's prior representation of him, and (4) to find out whether Mr. Henderson would waive any objection to Mr. Wood's disclosure of prior confidences. Mr. Wood also stated that he would rely only on information that was a matter of public record to impeach Mr. Henderson on cross-examination.
About ten days later, after hearing further argument, the court granted the government's motion to disqualify Mr. Wood, stating:
I frankly find, after reviewing all the relevant factors, that justice does require Mr. Wood's withdrawal and giving Mr. Pinkney an opportunity to choose new counsel. The reason I see that as necessary, recognizing that Mr. Pinkney does have a Sixth Amendment right to counsel of his choice, recognizing also that Mr. Pinkney has a right to conflict-free representation and to have vigorous representation without restraints on [Mr. Wood's] ability to do a thorough and effective cross-examination of a witness called against him. Recognizing also that Mr. Wood's former client has a right not to have any of his confidences exposed.
And based on the proffers made at the last hearing, I understand that Mr. Pinkney is at least willing to consider a waiver of any conflict that might interfere with his right but obviously to determine whether a waiver is appropriate would want to know with some precision exactly what the witness' testimony would cover to have a realistic understanding of what kind of cross-examination would be necessary.
It is also clear that Mr. Wood at least thought there was a possibility . . . based on his relationship previously with the witness, that the witness might be willing to waive some of the confidences that could possibly be at issue.
The court's concern, however, [is] that a knowing and intelligent waiver by either Mr. Pinkney or the witness is impossible. On Mr. Pinkney's side, the government is under no obligation to disclose pretrial the exact nature of the witness' testimony, and Mr. Pinkney can't know what he's waiving if he doesn't know what the testimony is going to be.
The witness, on the other hand, the only way he could agree to have Mr. Wood free to take advantage of his knowledge of him in cross-examination would be if Mr. Wood not only knew what the testimony was going to be about, and therefore was able to decide in advance what kinds of things would be used in cross-examination, and that very disclosure . . . would not only . . . require the government to disclose something they don't have to disclose, but it would . . . emasculate any cross-examination if you told the witness in advance what you'll be using, and that would clearly be unfair to Mr. Pinkney . . . .
A new attorney later entered an appearance for appellant. After that attorney and two successors were allowed to withdraw for various reasons, a sixth attorney (Wood had been the second) entered the case and ...